Lekshmi Sulochana and Others vs Rebello Raj

P. K. Shamsuddin J.

Defendants in O, S. No. 274 of 1981 on the file of the Court of Subordinate Judge Trivandrum, are the appellants. The suit was for compensation. Its defendant is the wife and the other defendants are children of deceased Benjamin Thankappan. He executed a sale deed in favour of the plaintiff with, respect to 17 cents of land in Sy. No. 197/5 of Kottuka Village on 14-4-1975, representing that he was absolute owner of the property and that it was free from encumbrance. At the time of execution of the sale deed, O. A. No. 250 of 1973 filed by one Pala Pachan against late Thankappan before the Land Tribunal, Neyyattinkara was pending, in respect of the plaint schedule property which was known to the plaintiff. It appears, Pachan filed C. R. P. No. 1723 of 1978 on 17-9-1980 against the order in O. A. which was disposed of holding that Pachan was a cultivating tenant in respect of the properly. Plaintiff was not a party to the said proceedings and he came to know about the proceedings only when the order of injunction was served on him in the suit filed by Pachan ''as O-S. No. 583 of 1980 in the Munsiff''s Court, Neyyattinkara. The consideration recited in the document of sale was Rs. 5000/-. Plaintiff claimed that the market value of the property in the year 1980 in the locality was more than Rs. 1000/-per cent. He limited his claim for damages to Rs. 15,300/-. Demands were made to the defendants by the plaintiff for payment of the amount but defendants did not settle the claim and hence the suit.

In the written statement filed by the defendants they alleged that the plaintiff was aware of the proceedings before the land Tribunal, and it was not true to say that he came to know about the proceedings only when he received the order of injunction in O. S. No. 583 of 1980. They also averred that the plaintiff was still in possession of the property, that Thankappan was competent to execute the sale deed, that since the plaintiff was in possession he had not suffered any loss and that the plaintiff had no cause of action to file the suit.

On a consideration of the oral and documentary evidence in the case, the court below came to the conclusion that there was no evidence to show that the plaintiff had any knowledge about the proceedings before the Land Tribunal, that by virtue of the order passed in C R. P. No. 1723 of 1978 the plaintiff lost title and possession of the property and he suffered loss and that therefore the plaintiff was entitled to compensation. The court below also found that the compensation claimed by the plaintiff was reasonable and in that view of the matter, a decree was given in favour of the plaintiff for recovery of Rs. 15,300/- as damages with 6% interest from the date of suit till the date of recovery from the assets of deceased Thankappan at the hands of the defendants.

In this appeal, defendants have challenged the finding of the court below. It was contended that false claim of Pachan was known to the responded and the suit was deliberately filed in collusion with Pala Pachan to harass the appellants after the death '' of the predecessor. There is nothing in the evidence to substantiate this contention. There is no evidence to show that the Plaintiff was aware of the proceedings before the Land Tribunal. He was not a party either to the application before the Land Tribunal or in the C.R.P. filed by Thankappan against the order passed by the Land Tribunal holding that Pachan was entitled to purchase the rights of the landlord and intermediaries u/s 72 of the Kerala Land Reforms Act.

Pachan also obtained an order of injunction against the plaintiff in OS No. 583 of 1980 and plaintiff lost title and possession. In the circumstances., there is no foundation for the argument of the learned counsel for the appellant that the plaintiff continued to be in possession of the property and that the suit was filed in collusion with Pachan.

Learned counsel next contended that the plaintiff is entitled to recover only the consideration paid by him, and not compensation for damages sustained by him. He relied on Section 65 of the Contract Act which lays down that when an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it. From the Section itself, it is clear that the plaintiff in such a case can either sue for-the return of consideration paid or claim compensation for it. This question has been considered in large number of cases and the consistent view taken is that the plaintiff in such a case can sue for return of the consideration paid or claim compensation for it. In this context Section 55 (2) or the Transfer of Property Act is also relevant. Sub section (2) of Section 55 lays down that the seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same. Besides this statutory provision, there is a specific covenant in Ext. A1 sale deed itself to the effect that the property was not put in possession of others and there was no other encumbrance or charge on the property and if anything happened, and loss sustained by the purchaser the seller as well as items 2 and 3 scheduled to the document would be liable to reimburse the plaintiff for the loss sustained. A Division Bench of the Madras High Court in Polavarapu Venketaswami v. Nalluri Venkayya (AIR. 1953 Mad. 529) considered the question and held that in a suit instituted for recovery of damages for breach of covenant for title and quiet possession, the damages must be ascertained on the date of the suit and not on any other date prior to it. It was also held that it is always open in such a case for the buyer to elect either of the two causes of action namely to recover the consideration paid together with interest on the basis of failure of consideration or to recover damages on the breach of covenant by reason of the indemnity implied in the covenant of title. The same view has been taken by the Nagpur High Court in Kisanlal Ramratan v. Radhabai and others (AIR. 1931 Nagpur 14), a Division Bench of the Andhra Pradesh High Court in Nannapaneni Narasingarayudu and Others v. Nannapanneni Ankineedu and another (AIR. 1962 And P. 192), a Division Bench of the Allahabad High Court in Muhammad Siddiq & Others y. Muhammad Nuh (AIR. 1930 Allah. 771 Nagpur High Court in Shaligram Sadasheo Pande v. Narain & Others (AIR. 1917 Nag. 125), and the earlier rulings of the Madras High Court in Dhada Shahib v. Muhammad Sultan Sahib (AIR. 1921 Mad. 384) and in (Yella) Ramayya and Others Vs. (Chukkapalli) Kotayya and Others, .

In the light of the principle enunciated in the decisions referred to above, there is no substance in the contention of the counsel for the appellant. The quantum of damages claimed is reasonable and it has not been shown that it is in any way excessive.

There is no merit in the appeal and it is accordingly dismissed. However, there will be no order as to costs.